Tribunal could have placed a claimant at a disadvantage by throwing out their claim - Unless & Costs Orders

In Chumbu v The Disabilities Trust, the employment tribunal made an Unless Order requiring the Claimant, by the prescribed date, to (1) serve his witness statement, and (2) pay the sum awarded against him by way of an earlier costs order. The Claimant’s claim was dismissed following his failure to comply with either of the requirements of the Unless Order. The tribunal refused to set aside the Order and grant the Claimant relief from sanction. The Claimant appealed this decision to the Employment Appeal Tribunal.

The EAT held that the tribunal had been wrong to make compliance with a costs order the subject of an unless order. This had the effect of turning the costs order into a deposit order and placed a condition on the Claimant’s access to justice. However, on the facts, the tribunal had been justified in not granting the Claimant relief from sanction in relation to the failure to provide a witness statement.

There had been a history of non-compliance by the Claimant, including an earlier failure to provide a witness statement in accordance with the tribunal’s directions, which had led to the adjournment of the initial listing of the full merits hearing. The tribunal’s decision in that regard revealed no error of law and meant that the refusal to grant relief from sanction was upheld.